A year on...

The regional Court of Protection

The Court of Protection has completed its first year at its base at Preston. Court arrangements and procedures have been tried and tested and the realities of a regional court are becoming clear. Gordon Ashton, Deputy Master at the Court of Protection, assesses the development of the court and what lessons have been learnt for the future.

A little more than 12 months ago, (ECA, Sept/Oct 2001, vol. 6, iss. 6), I wrote in this journal that the Court of Protection: “is now for the first time in its history to sit outside London in an effort to promote easier access to justice for people with mental incapacity. I am to be appointed a deputy master for six months from 1 October 2001...” It was intended that I would hear any case where it was more convenient for the parties to go to Preston Combined Court Centre where I normally sit as a district judge. It seemed like a dream at the time, but what has happened since then?

Origins

First, a bit of history and a correction. The origins of the court date from the Middle Ages when the crown assumed a parens patriae jurisdiction over the persons and estates of the mentally ill and mentally handicapped. The jurisdiction over a patient’s person was effectively abolished by the Mental Health Act 1959 and that is why we now need a new statutory jurisdiction. In 1842, two Commissioners in Lunacy, later known as masters, were appointed (the number being reduced to one in 1922). In 1934, the Office of the Master in Lunacy was renamed the Management and Administration Department and ultimately, became the Court of Protection in 1947. It draws its current powers from the Mental Health Act 1983 and the Court of Protection Rules 2001.

It has been pointed out to me that a Master in Lunacy sat in Preston over 80 years ago and I have been shown the report of the inquisition then held in the town (now of course a city). In those days, this special jurisdiction tended to be reserved for members of the landed gentry who were thought to have become insane and they were assessed by a local jury of their peers. So I can not be credited with achieving a ‘first’ and it could be said that regionalisation of the Court of Protection is not modernisation but merely the restoration of local justice that was once taken for granted! The difference is that the master now makes decisions alone without the assistance of a jury.

The pilot

It has become the policy of the Lord Chancellor’s Department for new arrangements in the courts to be tested before being permanently put into effect, hence my initial appointment for a six month ‘pilot’. New procedures had to be formulated and although great care was taken with these, it was by no means certain that they would work efficiently and ensure justice to those involved. During that period, suitable cases were identified and the parties invited to appear before me sitting as deputy master at Preston instead of before Master Lush at the usual London venue. To the best of my knowledge, none declined but the attraction was no doubt the local venue rather than the choice of judge.

For me, there was a steep learning curve because although I had dealt with these cases when in practice as a solicitor and have written extensively about the law and procedure, I had never sat on the other side of the bench in this rather special jurisdiction. Questionnaires were issued to the parties who appeared before me and at the end of the pilot a full evaluation took place. The results were overwhelmingly positive – there was a saving of time and expense to those involved and local solicitors were encouraged to remain actively involved rather than instruct counsel or solicitor agents in London. The administrative arrangements also worked smoothly. So I was then appointed a full deputy, which ensured my tenure of the office (unless I myself became ‘incapable’) for the next five years and we now have a Northern Court of Protection.

The reality

On certain days of each month, I am called master instead of judge and I have yet to decide whether this amounts to personal advancement. My colleagues, upon learning of the former title of Master in Lunacy, commented that this was highly appropriate for me and give me quizzical looks if ever I appear confused. I merely deal with hearings that are referred to me and an approach should never be made to Preston Court direct. The Public Guardianship Office in London deals with all the administration and the installation of computer systems has made it possible for all communication with my own court to be by e-mail. It is fortuitous that at Preston we are also conducting the PREMA pilot whereby the district judges receive applications in civil and family cases by e-mail and produce electronic orders, so I was already provided with a networked computer and an e-mail address on the government’s secure ‘internet’. I am in regular contact with the PGO in this way and sitting in my chambers at Preston, I often feel as if this is merely another room in the London headquarters at ‘Archway Tower’ in north London, which I otherwise visit infrequently, although personal contact remains important. Readers should note that the PGO has moved from ‘Stewart House’ in Kingsway to this new venue and the Court of Protection has moved with it, thus making London hearings even more inaccessible to those from ‘up north’.

Cases are listed before me and I give initial directions for the preparation of these on the basis of the summary that I receive by e-mail. The court file is only forwarded to me the week before the hearing but this gives me time to read it along with any bundles of documents lodged by the solicitors involved. The hearing takes place in my chambers rather than a more formal courtroom and I do not wear my wig and gown. As this is a new building, there is full disability access and facilities are good including conference rooms and disabled toilets for the public. I am accustomed to the use of technology in the modernised county court, so have not hesitated to introduce the available facilities into this more antiquated jurisdiction, including recorded hearings and the use of telephone conferences and video-links when these will assist. I also take my notes on a computer and generally prepare written judgements so that the parties will have a record as to why they have won, or lost.

The cases

Cases have reached me from families in Yorkshire and Northumbria as well as Lancashire, Cumbria and Cheshire. I have not dealt with any statutory will applications yet, but the first of these is listed before me in November following discussions with the official solicitor about his attendance. The hearings that I have conducted to date have fallen into the following three categories:

Most frequent is the disputed enduring power of attorney where the validity of the document or the suitability of the person appointed is questioned. Often this reveals a ‘dysfunctional family’ with long-standing enmity between offspring surfacing over the parental choice of attorney. My role is a balance between empowerment and protection because I wish to uphold the choice of the person who made the appointment (if indeed they knew what they were doing and were not subject to undue influence) but do not wish to leave them exposed to financial mismanagement or, worse still, to abuse;
In many ways similar is the dispute over the identity or conduct of a receiver appointed by the court to manage the financial affairs, although sometimes these cases represent challenges to administrative decisions made by case officers working in the PGO. Not every decision can be made by a judge, so the master provides a judicial overview of decisions initially made by these case officers;
The third type of hearing is very different and in many ways more satisfying. When a substantial damages award is made by the High Court of Justice or a county court to a mentally incapacitated person, (e.g. following a clinical negligence claim or to the brain damaged victim of a road accident), it becomes necessary to plan how the fund is to be invested and spent. For that purpose, the master will meet with the receiver and sometimes also the ‘patient’ (that is the incapacitated person) in company with any advisers and make decisions about the investment policy and such matters as the level of income needed, the purchase of a home and the provision disability aids. Further meetings may take place at intervals if circumstances change and hopefully a supportive relationship develops.

I can claim a first here because I have case managed or approved settlement of claims as a district judge, which have then been referred back to me for fund management as a deputy master. As northern solicitors become more aware of the implications of my dual role I am finding them channelling large damages claims to me in the High Court so that I can provide continuity following settlement. It is not always realised that the jurisdiction of a district judge, unlike that of a circuit judge, extends to the High Court of Justice as well as the local county court and may be exercised (subject to limitations) in all three divisions – Queen’s Bench, Family and Chancery.

Representation

Not only are local hearings more convenient to the families involved, but also their solicitors are choosing to appear before me sitting as a deputy master when they would not have attended a hearing in London. In consequence more firms are becoming familiar with this important jurisdiction and that must be for the benefit of the public. In other cases northern barristers have been instructed who admit that they have never ventured into the Court of Protection before, and I have even had a Chancery Silk appear before me. But those who cannot afford such representation should not be deterred. The hearings are as informal as possible, and inquisitorial rather than adversarial (rather like the ‘small claims track’ for civil disputes). So those who attend without a legal representative are, I hope, assured of being fairly heard and having the decision explained to them. I also like to meet the patients, if capable of attending, and in appropriate circumstances, will talk to them on my own to ascertain if they are able to express any personal wishes which I should take into account. After all, the hearings are all about them and their best interests, not the demands and desires of others who would wish to take them over, and it must be difficult for them to express their wishes in the presence of a group of people that includes arguing members of the family.

Appeals

An appeal from the master goes direct to a High Court Judge, traditionally in the Chancery Division but now there is the option of the Family Division. Such appeals are rare and there were none against my decisions during the first 12 months though that does not imply that parties have always agreed with my outcomes. I have just been informed of an appeal against my award of costs out of the donor’s estate to an objector to registration of an enduring power of attorney who withdrew before the full hearing. If that goes all the way it will be helpful to have guidance from the High Court as to the exercise of the court’s discretion over costs – there is none at present but the general approach is to award costs out of the estate unless the objection was mischievous or worse. It is not our policy to discourage whistle blowing of this nature and the costs order is part of the price that the donor or patient must pay for this level of supervision.

The future

It is now hoped that one or two more judges may be appointed as deputy masters to hear Court of Protection cases at other key centres in England and Wales – would it not be politically attractive to have a regional Court of Protection for Wales? We shall then have a truly regionalised court with a central administration and the capacity to take on many more cases if (or should I say when) the new jurisdiction over non-financial decisions becomes a reality. Or am I merely dreaming again?

Gordon Ashton is a district judge and on the Equal Treatment Advisory Committee of the Judicial Studies Board. He is a former member of the Law Society’s Mental Health & Disability Committee and the Joint Committee of the Law Society, the Court of Protection and the Public Trustee. He has written several books about older and mentally disabled people and the law including the Elderly Client Handbook (2nd edition May 2000, Law Society Publishing).